People v. Kennedy, Cr. 4533

• Decision Date: 15 January 1951
• Docket Number: Cr. 4533
• Citation: 226 P.2d 359,101 Cal.App.2d 709
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. KENNEDY et al.

Page 359

226 P.2d 359

101 Cal.App.2d 709

PEOPLE v. KENNEDY et al.

Cr. 4533.

District Court of Appeal, Second District, Division 1, California.

Jan. 15, 1951.

Hearing Denied Feb. 8, 1951.

Walter L. Gordon, Jr., Los Angeles, for appellant.

Fred N. Howser, Atty. Gen., Gail A. Strader, Deputy Atty. Gen., for respondent.

WHITE, Presiding Justice.

In an information filed by the District Attorney of Los Angeles County, defendants Melvin C. Kennedy, Elbert Mack, and John Foster were accused in Count I of the crime of robbery, and in Count II with the crime of kidnapping for the purpose of robbery, both offenses allegedly committed on January 13, 1950.

Following pleas of not guilty and after appropriate waivers of a jury, the cause proceeded to trial before the court. Pursuant to stipulation, the case of the prosecution was submitted on the transcript of the testimony adduced at the preliminary examination with a reservation by both prosecution and defense that either might introduce additional evidence.

At the trial additional evidence was introduced by the people and all defendants. The court found each defendant guilty as charged in both counts of the information and found the robbery to be of the first degree.

From the judgments of conviction, defendant Kennedy alone prosecutes this appeal.

Epitomizing the facts in a light most favorable to the prosecution as we are required to do following a conviction, the record reveals that on the afternoon of the date charged in the information, one Morris E. Hoier was employed as a truck driver for the Simon Levi Distributing Company in the city of Los Angeles and was driving a truck loaded with liquor on his usual route.

At approximately 2:15 p. m., as Mr. Hoier stopped his truck to make a delivery, defendant Elbert Mack approached the truck. He was armed with a pistol which he pointed directly at the driver and commanded the latter to 'Get in and drive'. Complying with the order, Mr. Hoier drove on with the defendant Mack, and under the latter's direction the truck was driven a short distance and pulled into a lot opposite the Jefferson High School. The driver was then ordered out of the truck, and accompanied by defendant Mack, walked to Compton Boulevard, where defendant John Foster was waiting with an automobile. In obedience to orders from defendant Mack, Mr. Moier entered the automobile with defendant Foster. Defendant Mack then gave his pistol to defendant Foster who drove around the immediate area for approximately 30 or 35 minutes, during all of which time defendant Foster 'held the gun on' Mr. Hoier.

Thereupon the latter was permitted to leave the automobile, told to walk in front thereof and not to look around.

At the time Mr. Hoier was taken from his truck he observed a third man get out of the aforementioned Foster automobile. Mr. Hoier however was unable to observe closely the features of this third man and unable to identify him.

During the time that Mr. Hoier was being driven around by defendant Foster, the liquor truck was taken by defendant Mack to the residence of defendant Kennedy where the latter was waiting. The cases of whiskey were unloaded from the truck by defendants Mack, Kennedy and one Murphy Franklin. Defendants Mack and Kennedy then left in the empty truck with defendant Mack doing the driving. The aforesaid Mr. Franklin followed them in his automobile and after they had abandoned the truck on a street, returned them to defendant Kennedy's residence.

Later that day the liquor unloaded from the truck, was sold to a Mr. Gutierrez, a used car dealer. Practically all the negotiations with respect to the sale of the liquor were carried on by defendant Kennedy, and a check in payment for said liquor was made to the order of defendant Kennedy in the sum of $330. On the check were written the words 'Refund on Chevrolet'. Mr. Gutierrez testified that the foregoing words were placed on the check at the suggestion of defendant Kennedy so that 'he could get it cashed faster'.

The sole ground urged by appellant for a reversal of the judgment is that 'the evidence in its entirety is wholly insufficient to support the judgments of conviction'.

From a reading of the foregoing factual narrative it is at once apparent that the evidence, insofar as it affects appellant, is circumstantial. However, the law recognizes no distinction between direct and circumstantial evidence in the degree of proof required. A conviction may be had upon evidence of either the one character or the other. All that is required is that the evidence, whether direct or circumstantial, shall be sufficient to establish guilt beyond a reasonable doubt in the minds of those charged with the duty of acting conscientiously upon it. Because circumstances very largely control the conduct of people in the most important affairs of life, it is said that circumstantial evidence may be as conclusive in its convincing force as testimony of direct witnesses to the overt act. And when circumstances are such as to exclude any other reasonable theory than that of guilt of the accused, they will justify a conviction.

In the case at bar the record discloses circumstances which in our opinion are incompatible with innocence. According to the testimony of Murphy Franklin, during the time that Mr. Hoier was being held up, appellant was standing in the driveway of his home where he remained for about a half hour until defendant Mack drove up with the victim's truck. Appellant then requested the witness Franklin to move his car so that defendant Mack could bring the truck in. After the truck was unloaded, Mr. Franklin, at the request of defendants, followed them in his car to where the liquor truck was abandoned, and then returned the defendants to appellant's home. It was appellant who directed defendant Mack where to leave the liquor truck. The question naturally arises as to why defendant Mack should bring the liquor truck directly to appellant's residence without a prior arrangement, pursuant to which appellant was admittedly awaiting its arrival, and subsequently disposed of the stolen merchandise. The fruits of the crime were sold to a long-time acquaintance of appellant, the latter negotiating for the sale. The check in payment therefor, in the sum of $330, was made payable to appellant. Written on the check were the words 'Refund on Chevrolet car'. The purchaser of the liquor was a used car dealer.

Another circumstance that commands attention is a conversation had between appellant and Police Officer Coppage of the Los Angeles Police Department, in the latter's office on January 20, 1950. On this occasion the officer read to appellant a statement made the previous day by defendant Foster, in which the latter implicated appellant as the 'brains' and instigator of the crimes charged.

On that occasion the following ensued, as testified to at the trial by the aforesaid police officer:

'At that time I read his statement, the statement issued by Foster the day before, to Kennedy (appellant). I read it word for word to him and after I read the statement, I said, 'Kennedy, it looks to me like you are in a pretty tought spot. Do you want to tell me anything about it?'

'He says, 'Well, I will admit that I sold the liquor; I will admit that I was at 901 East 35th Street when the liquor was brought there; but I wasn't actually on the job.'

'I says, 'Kennedy, I don't believe you, frankly.' I said, 'I'll tell you what I'll do. I am going to have Mack brought up here and I'm going to say nothing to Mack whatsoever. I want you to tell Mack to tell...